History of Cook County, Illinois From the Earliest Period to the Present Time, Part 68

Author: Andreas, A. T. (Alfred Theodore), 1839-1900
Publication date: 1884
Publisher: Chicago : A.T. Andreas
Number of Pages: 875

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. " The Lawyer as Pioneer," by Hon. Thomas Hoyne,

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over Butterfield, Scammon, Collins, Spring, Skinner, and Goodrich, as they were old Federals and Whigs, and only wanted to berid of an incorruptible judge, a Denio- crat who was not to be terrified by such enemies of the Constitution, the Democracy and the Union. But Ryan, a life-long Democrat, established a newspaper called the Tribune, to drive Pearson from the Bench. Its leading articles were such as Junius might have written, animated by a spirit of determination to drag from the Bench a Jeffreys or a Seroggs. Pearson was finally disposed of by the party taking him up as a State Senator and electing him from the counties of Cook and Will, in 1840. And from thence, hitherto, the Bench has heeded the lesson, for there has arisen no other oc- casion for the violent and irrepressible conflict of a Bar and Bench so divided by ignorance and incompetency on one side, and great independence and intelligence upon the other."

Besides the effort at impeachment, rendered abor- tive mainly hy political influence, the Judge's case was also before the Supreme Court, where he neglected to appear in person, contenting himself with a written de- fense which he requested a friendly lawyer to file in his behalf. Among the points made therein was the plea, that were this procedure of the Chicago Bar to be sus- tained, any Judge could, "by a malicious, trifling set of lawyers, if such should he found in a circuit, leaguing against him, be compelled every term to appear in the Supreme Court, and take issue with them on countless bills of exceptions. * In this way a combination of designing men might exhaust the means of any Judge in the State, or make him truckle to their will, or compel a resignation for want of funds."

Mr. Scammon made a second motion, before the Supreme Court, January 14, 1840, asking that an at- tach:nent might issue against Judge Pearson for neglect- ing to return the writ of alternative mandamus, or sign the bill of exceptions. The Supreme Court, through Judge Theophilus W. Smith, issued a peremptory man- damus that he should appear before it in person. In the spring term of the Circuit Court at Chicago, he again allowed his feelings to override his judgment, firing Mr. Stuart, editor of the American, $100, for constructive contempt of court, based on certain ad- verse editorial criticism during the Stone murder-trial. On appeal, his decision against Stuart was reversed when reached by the Supreme Court in 1842.

June 9, 1840, the motion for attachment was re- newed, and the Court took until the next day to con- sider; but when the writ was placed in the hands of the Sheriff, it was found that the Judge had availed him- self of the postponement and left Springfield. He was pursued and overtaken at Maysville, Clay County, while apparently making the best of his way to cross the bor- der into Indiana. He was taken back to the capital and fined Stoo for contempt, which was refunded with interest by the Fifteenth General Assembly, in the ses- sion of 1846.

It was now thought best by his political friends to withdraw him from a conflict in which his adversaries had won all the points, and he was therefore put in nom- ination as State Senator for the district embracing Cook, Will, DuPage, Lake and McHenry counties, all within the Seventh Circuit, over which he presided as Judge. In July he made an unsuccessful attempt at Chicago to hold a meeting to indorse his candidature; but at the election in August it was found that the Democracy of the district had come up handsomely to the support of their " martyr," Cook County alone giving him 1,404 votes, and sent him triumphantly vindicated to the

Twelfth General Assembly of Illinois, for four years. He resigned the judgeship November 20, 1840,

At this distance of time there is little room to doubt that Judge Pearson through self-willed and obstinate was a well-meaning man and an upright Judge, He was by nature or education, either a warm friend or an uncompromising enemy. In Chicago he was thrown into official relations with a Bar, the leaders of which were politically opposed to him, at a time when party spirit, always too high for justice and candor, was es- pecially intense. Added to this was a sort of intellect- ual resentment that a Judge from the Wabash country should have been selected to preside over a Bar whose brightest lights were emigrants from the Eastern States, Exhibiting hut scant respect and no friendship, they aroused the indignant and unguarded antagonism of a man, among whose faults cunning and hypocrisy could not be counted, nor patience and magnanimity among his virtues. He died at Danville, May 30, 1875, leaving a handsome estate to his family.

THE STONE MURDER-TRIAL,-The most notable criminal trial during the incumbency of Judge Pearson was thus designated. The story of the crime and the execution of Stone is fully related elsewhere in this work. A point of some legal interest is the apparent weaknessof the chain of circumstantial evidence upon which he was convicted of the murder of Mrs. I.ucretia Thompson, as there set forth. A bit of flannel torn from a shirt which was proved to have belonged to the accused and which was found near the body of the victim, the burning by him of the clothes worn in the earlier part of the day of her disappearance, the club used as the instrument of killing to which still adhered, when found, a hunch of her hair, and a remembered threat by him against her virtue, sworn to by a single witness, in the absence of any circumstances pointing toward any other neighbor, were deemed sufficient to warrant a verdict of murder in the first degree. Nor has there ever been any doubt of its justice, although John Stone stolidly asserted his innocence to the last.

ATTEMPTS TO SUPPLY NEEDED COURT FACILITIES .- Within a year of the disestablishment of the Municipal Court of Chicago, it was recognized by the Legislature that something should be done to relieve the overloaded docket of Cook County. Toward the close of the second session of the Eleventh General Assembly on February 3, 1840, it was enacted that there should be in the county of Cook a term of the Circuit Court on the first Monday in August for the trial of criminal and chancery cases only. And it was specially provided that if the Judge of the Seventh Circuit should be un- able to hold the March term in Chicago in 1841, he should there hold a term immediately after the spring term in Lake County, the last to be reached in the cir- cuit. This law, however, by reason of failure to be re- turned in time hy the council of revision did not go into effect until legally promulgated by the Secretary of State, at the close of the first session of the Twelfth General Assembly, December 5, 1842. It is of interest chiefly as showing the pressure of the problem how to give courts enough to Chicago.

SUPREME COURT JUSTICES AS CIRCUIT JUDGES .- The Twelfth General Assembly, at its second session, for reasons which here need only to be characterized as political, by an act dated February 10, 1841, legis- lated out of office the Judges of the nine circuits into which the State had by that time become diviled. In their stead were created five additional Justices of the Supreme Court, and upon the nine members of that court as thus re-organized were devolved all the Circuit

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Court duties of the State, besides their associate duties as the Supreme Court, at the capital, twice a year. This arrangement remained undisturbed until the adoption of the Constitution of 1848. To the Seventh Circuit, in- cluding Cook County, was assigned Judge T. W. Smith. who opened the spring term at Chicago toward the close nf April, 1841. On the docket were found one thou- sand and sixty cases. Of these, sixty-nine civil and six chancery were cases remaining over from the disestab- lished Municipal Court, while sixty-two criminal, fifty-one chancery, and eight hundred and seventy-two civil rep- resent the unfinished business of the Circuit Court. The fall term in 18.11 was also held by Judge Smith, but when the period of the spring term in 1842 came round he was too ill to hold a court, and as late as June & it was doubted whether he would ever be able to discharge his official duties, To keep Chicago court business within reach of judicial despatch, a special term was held by Stephen A. Douglas, July 18, 1842, the only time he served Chicago as Judge. There was a heavy docket of seven hundred and fifty cases, and but little civil business coukl he disposed of, because of the pressure on the court of the people's preferred criminal cases. All these terms since Pearson's in 1840 were held in the Chapman Building, corner of Randolph Street anıl what is now Fifth Aveune, but was then Wells Street. The fall term of 1842 was held by Judge Smith, who had meanwhile recovered. At this term an important decision was that lands in this State sold by the United States are not taxable until five years from date of pat- ent, not date of sale, as has been contended. At this term, ton, the Grand Jury found indictments for libel against Walters and Weber, editors of the State Regis- ter, at Springfield, and John Wentworth, of the Chicago Democrat, because of an editorial article which ap- peared in August in the State Register and was copied in the Deminerat, containing libelons and scurrilons matter against Julge Smith. It was in the shape of charges and assertions of what was declared to he an act of corruption in an opinion given by him in the Su- preme Court in January, 1842, and concorred in by a majority of Judges, in favor of purchases of canal lots in Chicago and Ouawa in 1836. By that decision a peremptory mandamus was awarded against the Canal Commissioners to compel them to admit those purchas- ers tu the benefit of an act of the General Assembly of this State, passed in 1841 in their behalf. He was also charged with removing certain clerks of court in his cir- cuit to gratify personal malignity. With bodily powers weakened by disease and feelings somewhat soured by these attacks it soon came to be understood that he contemplated an early retirement from the Bench. A meeting of the Chicago Bar was held November 25, at which, among others, the following resolution was passed : "'That in the estimation of this Bar Hon. T. W. Smith possesses a high order of talent and legal at- tainments ; that as a jurist and lawyer he is able and profound : that his conduct toward the members of this Bar, while on the Bench, has been courteous, gentlemanly, dignified and honorable." He resigned December 26, 1842.

In 1842, about fifty residents of Chicago availed themselves of the bankrupt law in the United States District Court, as Springfield. Unconscious of what the future held in store for the bankrupts of a later generation, there was much grumbling because it cost 8100 to get a discharge in bankmptey, even where the case was not contested. The lawyers charged fifty dol- lars and the other expenses were fifty more. This year marks the point of greatest financial depression in Chi-

cago, which in a superficial view has been declared to have constituted " the harvest of the notary and law- ver," but it need scarcely be remarked that a period of general distress is fraught with counteracting draw- backs to even lawyers and notaries. June 19, 1843, the same United States Court issued a peremptory order, " That all applicants for benefit of bankrupt law per- fert their application before the 20th of December next, U'pon their failure to do so, the petition will be dis- missed."

Meanwhile on February 14. 1843, three terms of the Circuit Court were provided for Cook County, on the fourth Mouday in March, the third Monday in August, and the first Monday in November, of each year, And at the same session, it was enacted that the Supreme ('ourt shoukl hold only one term, to begin at the capi- tal on the second Monday in December of each year.

Richard MI. Young, of whom a biographical sketch is elsewhere given, was commissioned a Justice of the Supreme Court Jannary 14, 1843, and assigned to the Seventh Circuit. He held several terms of the Circuit Court in Cook County until his second resignation in 1847. Although never rated very high as a jurist, he was always much esteemed here, and decidedly pre- ferred to some of his colleagues by Bar and people. His elerk of court was Samuel Hoard.

In February, 1844, Representative Wentworth pre- sented to C'ongress a petition of the Chicago Bar, asking that two terms of the United States courts be held in Chicago each year. At home his constituents were growing impatient of the law's delays, arising from the State's inadequate provision for the city's judicial wants by only three terms of the Circuit Court. A communi- cation from " many citizens," written by a lawyer, who, however, rightly represented the public, appeared in the Weekly Democrat of October 16, asking that the next Legislature should establish a special court for Chicago. This request, supported by the public opinion of which it was the expression, was reinforced Decem- ber 3, by Governor Ford's message to the General Assembly, in which he urged that increased judicial facilities should be extended to the growing commercial metropolis of the State. The Court of County Commis- sioners at this time took measures to enlarge and adapt the clerk and recorder's office to the additional purposes of a court-house.

By an act of February 21, 1845. the Fourteenth General Assembly ordained. "That there shall be, and is herehy created and established a Cook County Court. * * of record, with a seal and clerk, to be held by a judge to be chosen in the manner, and to hold office fur the term of judges of courts of record in the State. * * Said court shall have jurisdiction concurrent with the Circuit Courts. * * and shall have exclusive jurisdiction in all appealed eases * * and in all cases of misdemeanor which are proseccoted by indietment. * * The Judge of said court shall hold four terms of said court in each year, in a building to be provided by the County Com- missioners Court of said county, in the city of Chicagu. commencing on the first Mondays in May. August. November and February, and shall continue each term until all the business before the court is disposed of. * * The clerk of said court shall be appointed by the Judge thereof. * * 'The grand and petit jurors shall be clected. and the Sheriff shall perform same duties as in the Cir- euit Court " Of this court, Hugh 'T. Dickey was chosen by the Legislature, the first Judge, and James Curtiss was by him appointed the first clerk. Judge Dickey opened the first term of the new court May 5. 1845. and at its close was thus favorably noticed by the Journal,

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edited and owned by lawyers, but of the opposite school in politics: " Judge Dickey has during the session of the court shown himself a good lawyer, a sound reas. oner, and a dignified, impartial Judge. The rules of the court were submitted to the Bar on the last day of the term, and meeting with their entire approbation were ordered printed.""About ten days later, the Weekly Democrat of May 28, said : " He has made his court very popular, and the Bar would not consent to dis- pense with it or him, upon any terms whatever." The new court clearly met the wishes of the public at the outset, but as will be seen, its docket som hecame clogged by the swift-swelling tide of law business in Chicago.

The most notable criminal case of the year 1845, in either court was the Fahey mandaughter, sufficiently detailed elsewhere in this work.

At the close of the first year and fourth term of the Cook County Court, the Weekly Democrat of February 24. 1846, thus eulogized its presiding officer: " Judge Dickey grows in pop ilarity every succeeding court he holds. His dignity, urbanity, and well-balanced legal mind commend him to all who have anything to do with the court." At their August term an agreed case in relation to assessment for protecting the lake shore was argued before him, and decided against the city. His court as well as the Circuit Court were kept busy with ever increasing judicial business of Chicago. Judge Caton supplied the place of Judge Young at one terin of the Circuit Court in 1846, but as soon as the latter got well enough to hold court he presided at a special term, beginning June 15, and yet the docket was al- ways full.

Judge Young resigned January 25. 1847, to take office in Washington, and his successor, Jesse B. Thomas, Jr., was commissioned two days later. He held the office until December 4. 1848, when the new judicial system provided by the constitution of that year went into force. By an act of the Legislature in the spring of 1847, with a view to harmonize the terms of the two courts in Chicago, the two terms of the County Court .in August and November were replaced by one term in October. James Curtiss having been elected Mayor, his place as clerk of this court was filled by Louis D). Hoard, appointed thereto by Judge Dickey. The May term opened with three hundred and seventy- eight cases on the docket: of these two hundred and sixty-cight were common law, fifty-seven chancery, and fifty-three people's cases, but none of any class possess- ed historic interest.

FIRST LAW SCHOOL IN CHICAGO,-On the first Monday in December, 1847, the first law institute, or school, was opened under the auspices and with the en- dorsement of the Bench and Bar of Chicago, by John J. Brown, a member of the Bar having a reputation for general scholarship as well as professional learning, and special proficiency as a jury advocate and urator. The announcement which appeared in the Daily Democrat of November 30, was rather grandiloquent and preten- tious, but the comprehensive scope outlined perhaps not above his powers, when supplemented, as proposed, by lectures from members of the profession of arknowl- edged ability in special lines. Mr. Brown was a native of Virginia, settling at Danville, Ill., in 1839, had acquired some reputation in that section. He was the unsuccessful opponent of William Fithian for the State Senate in 1840, but was elected Representative to the same General Assembly. About 1846, he removed to Chicago, and after a year or more of practice here, pro- jected his law school, as above. The impression made

on the Bar of Chicago, and of the other sections of the Seventh Circuit where he became known, was quite favorable. He was regarded as an able advocate, scathing in sarcasitt and merciless in vituperation. On the hustings as well as at the Bar he could give and take with the best. It was remarked, however, that his scope was really narrow, he adroitly using one or two lines of thought and anecdote, with almost endless var- iation. "He had his faults," says Linder, "as we all have, over which it is our duty to draw the veil of chari- ty: but no foul blot or stain was ever fixed upon his character as a lawyer or as a man. * * He was an honor and an ornament tor the Bar of Illinois." "He was nat- urally a retiring and misanthropic man," says Eastman. " the lenses through which he looked at life seemed to be ever clouded-the glimpses of sunshine rare. * * Had his natural temperament been different, had his health been better, had life been more roseate, he would, as the years rolled on, have made for himself a high and honored name. * * He was undoubtedly the great master of withering and remorseless irony when aroused, of satirical and scornful gibe, then at the Chicago Bar of sarcasm, that when given full rein had something almost sardonic in it. To this end, his vehe- ment gestures, his eyes, his tall flexible person, and his leonine hair, all added emphasis, and woe to those upon whom the razor-like edge of his tongue fell when unbridled."

THE JUDICIARY BY THE CONSTITUTION OF 1848 .- The organizing clauses were as follows :

1. " The judicial power in this State shall be, and is hereby vester in one supreme court, in circuit courts. in county courts. and in justices of the peace, Provided, that inferior local courts, of civil and criminal jurisdiction, may be established by the Cien- eral Assembly in the cities of this State, but such courts shall have a uniform organization and jurisdition in such cities.

2. " The Supreme Court shall consist of three Judges, two of whom shall form a quorum : and the concurrence of Two of said Judges shall in all cases be necessary to a decision.

3. " The State shall be divided into three grand divisions, as nearly equal as may be, and the qualified electors of each division shall elect one of the said Judges for the term of nine years."

7. " The Stale shall be divided into nine judicial circuits, in each of which one circuit judge shall be elected by the qualified electors thereof, who shall hold his office for the term of six years. and until his successor shall be commissioned and qualified : I'To. vided, That the General Assembly may increase the number of cir- cuits to meet the future exigencies of the State." They were in- creased accordingly to thirty before the Constitution of 1848 was replaced by that of 1870."

8. " There shall be two or more terms of the Circun Court held annually in each county of this State, at such times as shall be provided by law; and said courts shall have jurisdiction in all cases al law and equity; and in all cases of appeals from inferior courts."

16 to 19. " There shall be in each county a court to be called a county court. One county judge shall be electeil by the qualified voters of each county, who shall hold his office for four years, and until his successor is elected and qualified. The jurisdiction of said court shall extend to all probate and such other jurisdiction as the General Assembly may confer in civil cases, and such criminal cases as may be prescribed by law, where the punishmem is by fine only. nol exceeding one hundred dollars. The County Judge, with such Justices of the Peace in each county as may be designated by law. shall hold terms for the transaction of county business," replacing the County Commissioners Court and Judge of Probate of the first Constitution, as well as the Probate Justices of later legislative in- stitution.

Some supplementary provisos were added in "the schedule," or appendix lo this constitution : among others, these : " The Judges of the Supreme Court shall have and exercise the powers and jurisdiction conferred upon the presem Judges of that court : and the said Judges of the Circuit Courts shall have and exercise the powers and jurisdiction conferred upon the Judges of those courts, subject to the provisions of this constitution. . . . The Cook and Jo Daviess County Courts shall continue 10 exist, and the Judge and other officers of ilic same remain in office until other- wise provided by law."

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THE PRE-EMPTION CLAIMS TO CANAL. LAND .- In January, 1848, the trustees of the Illinois & Michigan Canal brought suit against one Mr. Miller, before H. L. Rucker, Justice of the Peace. Sixteen other suits, differing only in the names of the defendants, depended on the result ; some two hundred persons were directly interested. The claim was for one hundred and sixty aeres to each original pre-emptor, or his later representa- tive, on the canal lands, within what became the city limits, as elsewhere, by the general pre-emption acts of Con- gress. The canal trustees awarded two blocks to each, as a full equivalent for ouc hundred and sixty acres of com- mon Government lands. This was not satisfactory to the claimants, anil the question was taken into the courts. In this case against Miller, the canal trustees claimed rent for his land since January, 1847, at which time a two years' lease from them had expired. Miller's lawyers, Thomas Hoyne and Patrick Ballingall, undertook to show that he held his pre-emption right by virtue of settlement and improvements made in, and subsequent to 1836, that ignorant of his rights he signed a lease which the trus- tees presented to him in 1842, which lease was never legally executed ; that the estoppel by taking a lease only applied during the existence of that instument, and did not prevent the pre-emptor from setting up his title under the laws of the State. The opinion of Judge Caton and other members of the Supreme Court were cited and presented to the jury by Mr. Hoyne. Two juries disagreed, and when the third was summoned the excitement ran very high, but when they returned a verdict for the defendant, popular enthusiasm knew no bounds. The question came up again, in another form, under Judge Spring, in 1851, and was again de- cided against the canal trustees, but the higher courts as will be seen eventually reversed these popular decis- ions of the lower courts.

THE FIRST UNITED STATES COURT at Chicago was opened in July, 1848, in the absence of Justice John McLean, of the Circuit Court, by Judge Nathaniel Pope of the District Court, with his son, William, as clerk. Some lawyers were licensed to practice before it, and other preliminary business done, but no case of importance is known to have occupied the attention of the court at that term.

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History of Cook County, Illinois From the Earliest Period to the Present Time, Part 68

Author: Andreas, A. T. (Alfred Theodore), 1839-1900 Publication date: 1884 Publisher: Chicago : A.T. Andreas Number of Pages: 875

Author: Andreas, A. T. (Alfred Theodore), 1839-1900
Publication date: 1884
Publisher: Chicago : A.T. Andreas
Number of Pages: 875